Justice Sandra Day O'Connor breaks 4-4 tie in what may be her last vote

Tuesday, January 24, 2006

The Associated Press

WASHINGTON -- In possibly her last day on the bench, Supreme Court Justice Sandra Day O'Connor broke a 4-4 tie Monday as she had so many times before -- and left a host of thorny issues for her successor.

Justices are about halfway through a historic term, with a new chief justice and the delayed retirement of its first woman member. The Senate could vote on replacing O'Connor with Samuel Alito as early as this week.

There was no sign Monday of the drama, as the robed justices met briefly to announce their last rulings before taking a monthlong break. It was not known if there were any private exchanges behind the red velvet curtains, where justices ceremonially shake hands before taking the bench.

"I doubt there were high fives all around, but I imagine everyone who headed out to sit on the bench understood this was Justice O'Connor's last day," said Kermit Hall, a historian and president of the State University of New York at Albany. "I think there was something more than a polite handshake."

The court had been expected to announce, but did not, whether it would hear three cases, dealing with abortion, politics and presidential wartime powers.

The Bush administration has called on the court to uphold a ban on a type of late-term abortion, and the other disputes involve congressional boundary-drawing and a test of President Bush's authority in detaining U.S. citizens on American soil without traditional legal rights.

O'Connor wrote an unanimous ruling in a separate abortion case last week and has been the deciding vote in two appeals, one that went against a death row inmate and the Monday ruling that put her on the other side of new Chief Justice John Roberts and the other conservative justices.

She has been busy away from court, as well. She tossed the coin before the Rose Bowl football game, accepted a job as chancellor of the College of William and Mary, called for clearer rules for detaining terror suspects during a speech to West Point cadets, and administered the oath to a group of new American citizens. She also was promoting her new children's book last fall.

O'Connor's retirement begins after the Senate approves her successor.

Her vote will not count in cases that are still pending when she retires, some 20 cases that have been argued before her and the other justices on such subjects as religious freedom and a college protest of the military's policy on gays.

The court will announce whether it will schedule new argument sessions in those cases to resolve ties.

O'Connor explained from the bench Monday the 5-4 ruling in which she joined the four more liberal justices in opening states to some lawsuits over the division of property in a bankruptcy. The opinion was authored by Justice John Paul Stevens, who was not on the bench and asked her to handle the announcement.

In a dissent, Justice Clarence Thomas and other conservatives complained that the five justices had "cast aside" long-established principles of shielding states from money lawsuits.

"It's fitting in a sense, that's the image that we have of O'Connor over the last 24 years," said American University law professor Stephen Wermiel. "She's leaving the bench, right down to the last minute playing the role that she has become known for playing -- being the middle of the court."

O'Connor, who has said she will spend her retirement caring for her ill husband and pursuing her hobbies of golf and fishing, has written three opinions since October.

In the most significant one, announced last week, she persuaded every court member to sign her opinion reaffirming that states can require parental involvement in abortion decisions, as long as the states make an exception to protect the mother's health.

Outside court on Monday, protesters marked the 33rd anniversary of Roe v. Wade, the landmark decision establishing the right to abortion. O'Connor supported that decision.